CARE REQUIRED IN FILING OF APPEAL with special discussion about condonation of delay when appeal was filed before wrong authority.

[C.A. DEV KUMAR KOTHARI]

Relevant links:

 M/s. Premchand Gokaldas V. CCE  decided on 27 August 2009 and reported as [2009 -TMI - 34741 - CESTAT AHMEDABAD]

Maruti Udyog Limited vs. Commissioner of Customs, Kandla - 2009 (92) RLT 58 (CESTAT. Ahmd.).

Sections 84 and 85 of the Finance Act, 1994.

 Proper and timely petition or appeal is always desirable:

It is always desirable and in the best interest of petitioner or appellant to file petition or appeal in proper form, before proper forum (authority or court), duly supported with relevant documents , payment of appeal fees, affixation of court fees stamp, duly verified etc. at least few days before the limitation provided originally.

If the petition or appeal is filed at least few days before the limitation, the advantage would be that in case any defect is notified, the same can be rectified within the surplus days available so as to contend that even if period taken to rectify the defect be considered, the petition or appeal is filed timely. For example suppose an appeal is filed within 40 days ( when 60 days is limitation) , so there are 20 days surplus available. Now suppose some defect is notified, and the same is rectified within ten days, it can be said that even the rectified appeal should be considered as filed within time.

Proper appeal or petition is the first impression:

A properly and timely filed appeal or petition is the first impression on the authority or court who considers it. In case a petition is filed belatedly, the first impression on the authority or court is that the petitioner or appellant is not serious and the matter might have been taken to litigation for some ulterior purposes like gaining time or avoiding obligations.

In case petition or appeal is not in proper form and is not within prescribed time, there is always risk and contingency for the same being dismissed summarily.

Limitation for taking some actions:-

 Under various legal provisions, limitations are prescribed for taking any action by the petitioner, appellant, respondent, cross objector, intervener, taxpayers /assessee and officers administering the legislation.  In some circumstances, the limitation prescribed is absolute and there is no scope to extend the period on ground of explanation for delay. In some circumstances, some relaxation is provided on satisfaction of existence of avoidable reasons or existence of sufficient cause for delay in taking the action. In some cases a maximum period up to which delay can be condoned by any authority or court is prescribed. In case the particular law is silent about the limitation then provisions of the Limitation Act and/ or other general law may be applicable depending on the matter and the forum where matter is to be instituted.  

 Relaxation is by discretion of concerned authority

Relaxations to condone delay or to rectify defects in documents, if provided in law, will depend on discretion of concerned authority or court subject to the reasons for delay and grounds for condonation of delay or reasons for defects in documents.

When there is no limitation up to which  a relaxation can be made the authority can exercise discretion and in particular circumstances relax the period of limitation even for longer duration if the facts and circumstances so require.  However, if there is no reason for such delay in presentation of documents or taking some action, the authority can refuse to allow relaxation of even few days.  In any case the concerned person, who seeks relaxation of limitation, must satisfy the concerned authority about his bona fides, diligence and reasonable cause for not taking action within the prescribed time and other grounds for admittance of the matter in interest of justice and to avoid damages or miscarriage of justice etc.

Care required in filing of petition, appeal etc.

The following are important points in relation to instituting or contesting any case by way of petition, appeal, cross objections etc.

Brief particulars	Check points	Remarks
Proper  proceedings and relevant forum	Check relevant law where different remedies are provided and choose best one in given circumstances. For example, rectification petition, revision petition, appeal before tax authorities or a writ petition before High Court or reference for an arbitration.	Every authority has some limitations under law as well as as per practices adopted. So a balanced decision is required.
Copy of orders	Check whether a certified copy of order is required, if so, apply for the same immediately	It may be better to file appeal etc. with Xerox copy of order and to furnish certified copy, if required, lateron when made available by concerned authority.
Limitations and time available	Check limitation period provided and time available for different possible proceedings.
Jurisdiction	Check jurisdiction, designation and address of concerned authority. In case of need, enquire it from the concerned authorities.	An authority which does not have jurisdiction cannot consider the petition or appeal.
In case of delay	Check alternate effective remedy. For example, in case of delay in filing of appeal alternate remedy can be revision or rectification; however, one has to check suitability of the same. Reasons for delay. Provisions for condonation of delay. Precedence of seeking COD in own case. Precedence of delay condoned in other cases.	Evidence for reasosn contributing to dealy may be kept ready.
Proper manner of of presentation or filing	The proper manner of presentation should be checked in relevant law and procedure manual and as per general practice.	The same should be presented or diled before proper authority and acknowledgment should be obtained.
Evidence of filing	Evidence of filing is important. Check the seal of receiver, signature, date of receipt.	Preserve the evidence carefully.

The special purpose of this article:

The general aspects are discussed above in brief. The special purpose of this article is to discuss the matter in light of a recent judgment on COD, when appeal was filed wrongly in wrong office of appellate authority. As suggested above, the appeal should be filed before proper authority and acknowledgment should be obtained. It should be checked that the seal/ stamp of authority is visible and it is dated and signed properly. The authority receiving should also be careful in accepting documents. In case the document presented should be filed before any other authority, it should be so advised. In case, by mistake a document is received in a wrong office, then the same can be forwarded to correct office or returned to the person who filed it so that he can present the same to correct office.

However, unfortunately we find that rarely any government revenue authority make effort to forward any document to concerned authority in case it is filed wrongly  in his office. Therefore, it is advisable to not to expect such courtesy from government officers. Therefore, the petitioner or appellant himself should take care to ensure that the document is filed properly and at proper office.

In case mistake in place of  filing come to notice:

In case after filing of appeal or petition in a wrong office the petitioner come to notice of the mistake he can take the following steps:

Write a letter to the authority in whose office document was wrongly filed to forward the same to the correct authority or office and forward a copy of this letter to the correct authority.

File a set of documents ( along with copy acknowledgment issued earlier ) of to the correct authority with an explanation that due to mistake, the original documents were filed by petitioner and acknowledged by the authority in whose office the same were filed under a bonafide mistake and that the date of filing of original documents may be considered as date of filing, and in case any delay is deemed or considered, the same may be condoned and the petition / appeal may be admitted.

Follow up the matter and try to get the document forwarded to the correct authority and to get the petition / appeal regularized at correct office.

The above actions will improve case for bonafide and reasonable cause for mistakes or lapses to enable concerned authority or court to take a favorable decision to condone the same.

A recent decision of CESTAT:

In M/s. Premchand Gokaldas V. CCE  decided on 27 August 2009 and reported as 2009 -TMI - 34741 - CESTAT AHMEDABAD matter relating to condonation of delay in filing of appeal before the Commissioner (Appeals) came before the bench to examine order of Commissioner (Appeals) vis is vis his power to condone delay.

In this case Commissioner (Appeals) has dismissed the appeal filed by the assessee on the ground of limitation by holding that he does not have powers to condone the delay beyond the period of 30 days. He consider the date of filing of appeal in his office and ignored the fact that  appeal was in fact filed within time but was submitted in the wrong office that is office of the  Joint Commissioner of Service Tax, Ahmedabad whose office was in the same building and at the same floor, where the office of appellate authority was situate. The original filing of appeal was within time. The Tribunal considered provisions for exclusion of period and some earlier decisions laying down that the time spent before the wrong forum should not be taken into consideration while calculating the limitation. It was noticed that the appellants have admittedly been pursuing at each level for transfer of the appeal papers to right forum and it was equally the duty of Joint Commissioner, before whom the appeal was wrongly filed, to transfer the papers to the right office. If that would have been done, there would have been no question of any delay requiring any condonation. Therefore, the Tribunal held that the appeal can be considered to have been filed within time.

Decision of Tribunal in the case of Maruti Udyog Limited vs. Commissioner of Customs, Kandla - 2009 -TMI - 35027 - CESTAT, AHMEDABAD was also relied on by appellant and followed by Tribunal.

On consideration of the facts as summarized above and as noted in details by the Tribunal in its order the Tribunal held as follows:

            " As such, the appeal having been filed admittedly within time, we are of the view that there is no delay requiring any condonation and as such, the question of Commissioner (Appeals) powers to condone or not to condone the delay beyond 30 days, does not arise.

            We dispense with the condition of pre-deposit and take up the appeal itself. The impugned order is set aside and matter remanded to Commissioner (Appeals) for decision on merits. Stay petition as also appeal get disposed off in above manner".

Mistake of receiving office:

Generally peons of petitioner or appellant go to file appeal. Even if a clerk of petitioner goes, he is not well conversant with the procedure and place of filing. However, the officer / clerk  who receives the document in government office  is supposed to be well conversant with these aspects. In the case  the covering letter  was correctly  addressed to Commissioner (Appeals), and it was accompanied with appeal documents so the office of the Joint Commissioner should not have accepted the same and in fact should have guided the messenger about the correct office and its location. Instead of doing so, it was wrongly received by the office of Joint Commissioner of Service Tax, Ahmedabad.

Rubber stamp of receiving office:

Many time we find that the rubber stamp placed by receiving office is not visible. Therefore, even if it is checked, one cannot be sure, whether it is relating to correct office where the document was filed. Therefore, it should be insisted to have a proper visible stamp and signature of person who received the document.

There appear no action against wrong actions and omissions to act:

It is surprising that how the office of Joint Commissioner accepted appeal documents with a covering letter which was addressed to the Commissioner (Appeal)?

There is system of recording, numbering and placing all documents filed in any office, before the concerned officer, and the officer signs the same and place his instructions, if any.

It is again shocking that how the officer (JC) placed his signature on the document, without giving direction to forward the document to the concerned correct authority that is Commissioner (Appeal) or to return the same to the assessee?

In case the Joint Commissioner has issued directions to forward the document to the Commissioner (Appeal) or to return the same to the sender, why his directions were not complied with immediately.

The above apparent laxities in the office of the Joint Commissioner clearly shows that how carelessly the public servants are working and dealing with taxpayers and that they have hardly any concern with a co-operative approach as pronounced in Citizens Charter.

 It is also surprising as to why any action was not taken against the erring clerks and officers who accepted the appeal documents and then held them and not forwarded to the Commissioner (Appeals) or returned to the assessee.

A fit case for awarding costs:

This was a fit case in which the Tribunal could have awarded costs in favor of the taxpayer for the un-necessary costs which the taxpayer had to incur and the harassment to which the taxpayer was placed due to wrong action in accepting appeal documents and for omission of the office of the Joint Commissioner in not forwarding the document to the Commissioner (appeals) or returning the same to the taxpayer.